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Prosecutor’s Remarks in Summation, in Combination with the Erroneous Admission of Portions of a Recorded Phone Call Made by the Defendant from Jail, Warranted Reversal

In reversing defendant’s conviction, in part, because of the prosecutor’s remarks in summation, the Second Department wrote:

…[C]ertain comments in the prosecutor’s summation were improper, including the comments in which the prosecutor denigrated the defense, vouched for the truthfulness of prosecution witnesses, and shifted the burden of proof to the defense by, inter alia, stating that the defendant had not established reasonable doubt or established that the People’s witnesses were untruthful or engaged in a “conspiracy,” and improperly commented on the defendant’s failure to call a certain witness… .  People v King, 2014 NY Slip Op 01770, 2nd Dept 3-19-14

 

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Remedy When Referee Exceeds Authority
FAILURE TO REQUEST A JURY CHARGE ON THE INTOXICATION DEFENSE MAY HAVE BEEN A STRATEGIC DECISION WHICH THE APPELLATE COURT WILL NOT SECOND GUESS IN HINDSIGHT (SECOND DEPT).
Property Was Not Transferred Until Escrow Conditions Were Met—Appellant Did Not Own the Building Where Plaintiff Slipped and Fell Because the Escrow Conditions Were Not Met and the Deed Was Not Released from Escrow Until the Day After the Slip and Fall
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